From The Legal Angle

From the Legal Angle

    By virtue of a marriage contract both the husband and the wife belong to each other, and each of them has a right to enjoy the other. As far as the marital benefits are concerned, the marriage contract creates a sort of proprietary right. In the case of polygamy it is the first wife who has the first claim to the marital benefits, and as such any transaction between the husband and another wife is ultra vires, for the goods under transaction, as marital benefits may be called, have already been sold to the first wife. Hence no subsequent transaction can be valid without her consent. As such, if polygamy is to be allowed, its validity must depend upon the consent and agreement of the first wife. She should have the right to decide whether she can or cannot allow her husband to have another wife.

    This means that to have a second, third and fourth wife is just as if a person had sold his property to a person and then resold it to a second, third and fourth customer. The validity of such a transaction will depend on the consent of the first, second and third buyers respectively. If the vendor actually delivers the property to the subsequent buyers without such a consent, he is liable to prosecution.

    This objection is based on the presumption that the legal nature of marriage is that of exchange of benefits, and that each of the husband and the wife owns the marital benefits accruing from the other. Though this presumption is not sound, for the present we do not want to dispute it. Let us presume the position to be actually so. But this objection can be valid only in case the husband takes another wife only for fun. Obviously if it is admitted that the legal nature of marriage is that of exchange of marital benefits, plurality of marriage is not justifiable only so long as the wife can in every respect meet the lawful needs of her husband. But if there exists any of the justifying causes mentioned earlier, the objection becomes void. For instance, if the wife is barren or has attained the age of menopause and the husband is still in need of a child, or the wife is sick and not fit for cohabitation, the right of the wife will be no bar to plurality of marriage.

    This is the position in case polygamy is only a personal requirement of the husband. But if it is a social requirement, for example, if women outnumber men in a society or the society needs a larger population, then the case is quite different. In such cases, plurality is a duty which is to be performed by an adequate number of men. It is a duty to be carried out to save the society from corruption and prostitution or to increase the population of the community. When it is a question of social duty, obviously the question of the consent and permission of the wife does not arise. Suppose in a society women outnumber men or the society needs a larger population, then a social duty devolves on all married men and women which should be carried out by an adequate number of them in the spirit of self-sacrifice. This is exactly like the case of conscription. The defence of the country devolves a duty on all families to send their dear ones to the front for the sake of the society. In such cases there is no question of the consent of the parties concerned.

    They who maintain that justice demands that polygamy must depend upon the consent of the existing wife, look at the question from a narrow angle. They think that a husband always wants to have more than one wife only for pleasure and variety. They forget that there can be other individual and social needs also. Basically plurality of marriage should not be acceptable even with the consent of the existing wife, if no individual or social need is involved.

From the Philosophical Angle

    The law of polygamy is repugnant to the principle of equality between man and woman as human beings. As man and woman both have equal rights, either both of them should be allowed to practise polygamy or neither of them. It is a pure and simple discrimination to allow man to have several wives and not to allow woman to have several husbands. To allow man to have up to four wives means that the value of a woman is only one-fourth that of man. This position is derogatory to woman and is not even in keeping with the Islamic view in respect of inheritance and evidence. In respect of giving evidence, two women are regarded as equal to one man.

    This is the most flimsy objection. It seems that the critics have paid no attention to the individual and the social causes of polygamy. They think that it is only a question of passion. Hence man and woman should be treated equally. We have already discussed the cases in which polygamy is justified. We have also pointed out the circumstances in which a duty in respect of a husbandless woman devolves on all married men and women. Hence, it is not necessary to dwell on this question any more.

    It is enough to say that if the teachings of Islam in respect of polygamy, inheritance and evidence had been due to any apathy to woman's rights, and had Islam discriminated between man and woman as human beings, it would have held a uniform view on all relevant questions. In the case of inheritance it would not have allowed woman only a half of the share of man in some cases and an equal share in others. Similarly, in the case of evidence there would not have been different rules in different cases. All this shows that Islam has some other philosophy. We have already explained the question of inheritance in a preceding chapter. We have also pointed out elsewhere that from the Islamic point of view the question of equality between man and woman as human beings is a part of basic human rights. Anyhow, while dealing with family rights, Islam has taken into consideration certain other aspects also which are more important than the question of mere equality.

Role of Islam in the Development of Polygamy

    Islam neither invented polygamy (for it had been in existence for centuries before the inception of Islam), nor did it abolish it, for there existed no other solution of certain social problems. Islam only reformed this ancient custom.

Limitations

    Before Islam, one could have an unlimited number of wives and could form a harem. Islam prescribed a maximum limit. It did not allow anyone to have more than four wives. Those who had more than four wives at the time of embracing Islam were required to release the extra wives.

    We come across the names of several such people in the early history of Islam. A man named Ghaylan bin Aslamah had ten wives. Another man named Nawfal bin Mu'awiyah had five. The Holy Prophet ordered them to part with their extra wives.

    The Shi'ah traditions report that during the days of Imam Sadiq (P) a Zoroastrian embraced Islam. He had seven wives. The Imam was asked as to what that man should do with his wives. The Imam said that he must part with three.

Justice and Equal Treatment

    Another reform introduced by Islam was the condition of giving equal treatment to all the wives. Islam does not allow any discrimination between the wives or between their children. The Holy Qur'an expressly says: "If you [ear that you will not do justice (to them) then have one only". (Surahan-Nisa,4:3)

    The Pre-Islamic world observed equality neither between the wives nor between their children. We have already quoted Christenson and others who say that during the Sassanian period polygamy was customary in Iran. One or more wives were called favourite wives and they enjoyed full rights and others known as servant-wives had lesser legal rights. Only the male children of the servant-wives were recognised to be the members of the paternal family.

    Islam abolished all such customs and usages. It does not allow any wife or her children to be regarded as inferior to the other wife or children of her husband.

    Will Durant in his book, History of Culture, Vol. I, says:

    "When a person accumulated wealth he feared that if it would be divided among all his children, each one of them would receive only as small portion of it. So he felt anxious to make a distinction between his real and favourite wife and other mistresses to enable the children of the real wife only to inherit from him."

    This shows that in the ancient world discrimination between the wives and between their children was common. Anyhow, surprisingly enough Will Durant adds: "Till recently this continued to be the case in Asia. Gradually the real wife took the position of the sole wife. Other wives either disappeared or became clandestine mistresses."

    Will Durant did not take notice of the fact, or he did not want to do so, that 14 centuries ago Islam abolished discrimination between the children. To have one real wife and several secret concubines is a European and not an Asian custom. It has only lately infiltrated into Asia.

    Anyhow, the second reform which Islam introduced in the domain of polygamy was the abolition of discrimination between the wives and between their children. No form of favouritism with any particular wife is permissible. Almost all jurists are unanimous on this point. Only a few minor juristical schools have interpreted the rights of women in a way that smacks of discrimination. But there is no denying the fact that their view is in contradiction with the correct interpretation of the Qur'anic passage. The Holy Prophet is reported by both the Shi'ah and the Sunnis to have said: "He who has two wives but does not treat them equally and shows leaning towards one of them, will be raised on the Day of Resurrection in such a state that one side of his body will be dragging along the ground. He will eventually go to Hell".

    Justice is the greatest moral virtue. To prescribe the condition of justice and equal treatment means that the husband is required to be in possession of the highest moral qualities. As the feelings of man in respect of all his wives usually are not the same, observation of justice and abstinence from unequal treatment is one of his most onerous duties.

    We all know that the Holy Prophet, during the last ten years of his life, that is, during the period of his stay in Madina, married several women. This was a period of Islamic wars and at that time the number of women, who had nobody to look after them, was quite large. Most of the wives of the Prophet were widowed and aged. Several of them had children by their former husbands.

    The only maiden he married was Ayesha, who often proudly said that she was the only woman whom no husband other than the Prophet, had ever touched.

    The Holy Prophet, always gave strict equal treatment to all his wives and never discriminated between them. Urwah bin Zubayr was a nephew (sister's son) of Ayesha. He inquired of his aunt as to how the Holy Prophet treated his wives. Ayesha said that he treated them with justice and complete equality.

    He never gave preference to anyone of them over anyone else. Almost daily he called on every wife and inquired after her health etc. He passed the night with one wife, turn by turn. If by chance he wanted to pass a night with another wife, he formally came to the wife whose turn it was and took her permission. If the permission was given, he would go, otherwise he would not. Ayesha said that she personally declined to give permission as and when he asked for it.

    Even during his last illness which led to his death and when he was too weak to move, the Holy Prophet scrupulously adhered to the principle of equality in his treatment with his wives. His bed was shifted from one room to another daily. At last, one day he called all his wives and asked them to permit him to stay in one room. With their permission he stayed in the room of Ayesha.

    At the time when he had two wives, Imam Ali (P) was so particular that he performed even ablution before prayer (wuzu) in the house of the wife whose turn was there.

    Islam attaches so much importance to the principle of justice and equality in treatment that it does not allow the husband and the second wife to enter into an stipulation at the time of their marriage, by which the second wife agrees to live on unequal terms with the first wife. This means that it is an obligatory duty of the husband to treat each wife on terms of strict equality, and that he cannot renounce this responsibility by entering into a prior agreement with anyone of his wives. All that the second wife can do is to forego some of her rights for practical purposes. But no such condition can be stipulated, nor is it possible that she should not have equal rights. Similarly, the first wife also can voluntarily forego some of her rights for practical purposes, but she cannot formally renounce them.

    Once Imam Baqir (P) was asked whether by mutual consent it could be stipulated that the husband would visit one of his wives only once a week or once a month, or that the maintenance allowance of one wife would not be equal to that of another wife. The Imam said that such stipulations were not valid even with the consent of any wife. By virtue of marriage, every wife was entitled to full marital rights. All that she could do was to forego some or all of her rights after marriage, either to please her husband or for some other reason.

    With all these strict moral conditions polygamy becomes a duty instead of being a means of pursuit of pleasure. Pursuit of pleasure and licentiousness are possible only in an atmosphere of complete freedom to pursue one's desires. But where there is a question of discipline, justice and duty, there can be no room for lewdness.

    Those who indulge in licentiousness under the pretext of polygamy misuse an Islamic law and the society has every right to call them to account and punish them.

Apprehension of Not Doing Justice

    To be fair, it must be admitted that the number of those, who observe in letter and spirit all the conditions laid down by Islam in respect of polygamy, is very small. According to the Islamic law, if a man apprehends that the use of water may be harmful to him he should not perform ablution for prayers, and if he apprehends that fasting may be harmful to him he should not keep fast. You come across many people who inquire of you whether they should or should not perform ablution, or whether they should or should not keep fast, for they apprehend that performing ablution or keeping fast might be harmful to them. Such inquiries are in order. Such people should not perform ablution and should not keep fast.

    But the Holy Qur'an specifically says that if you fear that you will not treat your wives equally, you must have only one wife. Still you do not come across a single person who may say that he apprehends that he might not be able to treat two wives equally, and may inquire whether in his circumstances he should or should not have a second wife. It is evident that some people knowing well that they will not be able to do justice, still have several wives. They do so under the cloak of Islamic law. These are the people who bring a bad name to Islam by their unworthy action.

Harems

    Another reason why Islam is criticised for polygamy is the system of harems adopted by the former caliphs and sultans. Some Christian writers and missionaries have described polygamy in Islam as equivalent to the system of harems with all its shameful and cruel aspects.

    Unfortunately some of our own writers who, like a parrot repeat the ideas expressed by the Europeans, unnecessarily associate polygamy with harems. They are not endowed with enough independence of thinking to be able to distinguish between the two.

Other Conditions

    Besides the condition of justice and equality of treatment, there are also other conditions which a husband has to fulfil. We all know that a wife has a number of financial and other rights which the husband has to discharge. A husband has the right of having more than one wife, provided his financial condition allows him to do so. Financial soundness is a pre-requisite to monogamy also. Anyhow, we skip over further discussion of this question.

    Physical and sexual potentialities are another pre-requisite.

    It is reported in Al-Kafi and Al-Wasail that Imam Sadiq (P) has said that in case somebody collects several women, while he is not fit to satisfy them all, he will bear full responsibility if any of them takes to sin.

    The historical accounts of the harems narrate many stories of young women, who, forced by the pressure of their sexual urges, had recourse to sin and occasionally became the cause of crimes and murders.

    By now our readers should have become aware of the causes of polygamy and why Islam has not abolished this system. They should also have become aware of the conditions and limits prescribed by Islam in this respect. Islam has not disparaged women by allowing this system, but has rendered a great service to them. If polygamy is not allowed even where women of marriageable age outnumber men, women may become worthless toys in the hands of men. They may be treated worse than slave-girls, for man recognises the child of a salve-girl as his own, but he makes no such commitment in respect of his mistresses and concubines.

Modern Man and Polygamy

    Modern man is averse to polygamy, not because he wants to be content with one wife, but because he wants to satisfy his sense of variety by indulging in unlimited adultery, for which ample facilities are available. Sin and not fidelity has taken the place of polygamy. That is why modern man is opposed to plurality of wives which commits him to many duties and responsibilities, financial and otherwise. In the past, even for a licentious man, opportunities of sin were limited. That is why he had to take recourse to polygamy and, in spite of evading many duties, he still had to shoulder certain responsibilities in respect of his wives and children. The modern man who has ample opportunities of enjoyment does not see any necessity of making the least commitment. Hence he is averse to polygamy.

    The modern man employs women as secretaries, typists etc. for his enjoyment, and credits the expenses to the account of the government, his firm or any other organisation in which he may be working, without having to pay a single penny from his own pocket.

    The modern man changes his mistress after every few days without undergoing any formalities of dower, maintenance and divorce. M. Tshombe was vehemently opposed to polygamy, but he always had a young, beautiful secretary at his side whom he changed every year. With such possibilities there is evidently no need to countenance polygamy.

    We read in the life account of Bertrand Russell, who was a severe opponent of polygamy, that two women, besides his grandmother, played an important role in his life. One was his wife, Alice, and the other was his sweet-heart, Morrel. Morrel who was one of the most prominent women of that period, was on friendly terms with a number of the writers of the early 20th century. Evidently such a man could not support polygamy.

    Apparently it was Russell's extra marital love which put an end to his relations with Alice. He himself writes that one afternoon, while he was going on a bicycle to a summer resort in the suburbs, he suddenly felt that he no longer loved Alice.